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Saving Seeds Subjects Farmers to Suits Over Patent
From: Dave Farber <dave () farber net>
Date: Sun, 02 Nov 2003 18:52:02 -0500
Delivered-To: dfarber+ () ux13 sp cs cmu edu Date: Sun, 02 Nov 2003 16:33:52 +0100 From: Cheryl Gilbert <cgilbert () xs4all nl> Subject: For IP? NYTimes.com Article: Saving Seeds Subjects Farmers to Suits Over Patent To: dave () farber net Dave, For IP? Long-time reader, and my first submission. Seems interesting given how many other discussions about IP we've been having. Cheryl > > Saving Seeds Subjects Farmers to Suits Over Patent > > November 2, 2003 > By ADAM LIPTAK > > > > > > TUPELO, Miss., Oct. 30 - Homan McFarling has been farming > here all his life, growing mostly soybeans along with a > little corn. After each harvest, he puts some seed aside. > > "Every farmer that ever farmed has saved some of his seed > to plant again," he said. > > In 1998, Mr. McFarling bought 1,000 bags of genetically > altered soybean seeds, and he did what he had always done. > But the seeds, called Roundup Ready, are patented. When > Monsanto, which holds the patent, learned what Mr. > McFarling had sown, it sued him in federal court in St. > Louis for patent infringement and was awarded $780,000. > > The company calls the planting of saved seed piracy, and it > says it has won millions of dollars from farmers in > lawsuits and settlements in such cases. Mr. McFarling's is > the first to reach a federal appeals court, which will > consider how the law should reconcile patented food with a > practice as old as farming itself. > > If the appeals court rules against him, said Mr. McFarling, > 61, he will be forced into bankruptcy and early retirement. > > > "It doesn't look right for them to have a patent on > something that you can grow yourself," he said. > > Janice Armstrong, a Monsanto spokeswoman, said the company > invested hundreds of millions of dollars to develop the > seed. "We need to protect our intellectual property so that > we can continue to develop the next wave of products," she > said. > > Were farmers allowed to replant the seed, the company said > in its appeals court brief, "Monsanto would effectively, > and rapidly, lose control of its rights." > > That is because one bag of the patented seed can produce > about 36 bags of seed for use in the next growing season. > The number grows exponentially. By the third season, the > single bag of seed could generate almost 50,000 bags. > > Ms. Armstrong said that there are about 300,000 soybean > farmers in the United States, and that Monsanto has > disputes with only about 100 of them a year. Most disputes > are resolved quickly and informally, she said. > > Farmers here said the company's efforts to investigate the > replanting of saved seeds have been intrusive, divisive and > heavy-handed. > > "They hired the whole city of Tupelo's night police force," > said Mitchell Scruggs, 54, who is a defendant in another > saved-seed lawsuit. "They bought a lot across the street > from me for surveillance. They're spending all this money > on airplanes, helicopters, detectives, lawyers." > > "They told a federal judge that it wasn't a monetary > issue," Mr. Scruggs said over the roar of three cotton gins > at his farm here. "They wanted to make an example of me. > They want to destroy me to show others what could happen to > them." > > In this respect, the seed lawsuits resemble the record > industry's actions against people who share music files on > the Internet. There, too, the goal is not primarily to > recover money from particular defendants but to educate the > public, and perhaps to scare other potential offenders. > > Ms. Armstrong acknowledges that Monsanto must walk a fine > line. > > "These people are our customers," she said, "and we do > value them. But we also have to protect our intellectual > property rights." > > Legal experts say Monsanto is likely to win its appeal, in > part because Mr. McFarling signed a standard contract when > he bought the seed. He said he did not read the contract at > the time and it had never occurred to him, until Monsanto > contacted him with a $135,000 settlement offer, that he had > done anything unlawful. He had paid about $24,000 for 1,000 > bags of seeds, including a "technology fee" of $6.50 per > bag. > > The contract, which Monsanto calls a technology agreement, > said buyers could use the seed "only for a single season" > and could not "save any seed produced from this crop for > replanting." > > One judge, dissenting in an earlier appeal that upheld an > injunction against Mr. McFarling, wrote that the > boilerplate contract did not give Mr. McFarling a fighting > chance. > > "The terms printed on the reverse of the technology > agreement are not subject to negotiation and Monsanto's > billions of dollars in assets far exceed McFarling's > alleged net worth of $75,000," wrote Judge Raymond C. > Clevenger III of the United States Court of Appeals for the > Federal Circuit. The same court is hearing Mr. McFarling's > second appeal. > > "Even an attorney reading the technology agreement might > not understand that it purports to subject one to patent > liability in Missouri," where Monsanto is based, Judge > Clevenger continued. Someone versed in the specialized > decisions collected in law books might have understood it, > he wrote, "but we may presume that few feed stores stock > the Federal Reporter on their shelves." > > Lawyers for the farmers here have worked hard to frame > defenses that might work in court. Mr. Scruggs, for > instance, promises to attack the validity of the patents > themselves and to show that the company's practices amount > to a violation of antitrust laws. > > Mr. Scruggs said that unlike Mr. McFarling, he did not sign > the technology agreement. Even without it, though, legal > experts said the case against him was strong. The idea that > planting saved seed amounts to patent infringement, they > said, follows inexorably from two United States Supreme > Court decisions allowing patents for life forms. > > Monsanto's soybean seeds account for at least two-thirds of > the American soybean harvest. The seeds are called Roundup > Ready because they are resistant to a popular herbicide > called Roundup, which is also a Monsanto product. > > Mr. McFarling and Mr. Scruggs have been forbidden by court > orders to use Monsanto's products. They said that > conventional seed was perfectly good, but that effective > herbicides had become hard to find. > > Mr. Scruggs said the courts should find a way to weigh > traditions almost as old as humanity against fostering > high-technology innovations. > > "It's a God-given right that farmers were given when they > were born to save these seeds," he said. "All we are is > farmers trying to scrape a living out of this dirt." > > http://www.nytimes.com/2003/11/02/national/02SEED.html?ex=1068785507&ei=1&en =dd5891cbe6e13a6a > > > --------------------------------- > > Get Home Delivery of The New York Times Newspaper. Imagine > reading The New York Times any time & anywhere you like! > Leisurely catch up on events & expand your horizons. Enjoy > now for 50% off Home Delivery! 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